Most easements are created when one party grants the right to use its land to another by contract, but prescriptive easements are acquired when one party fulfills certain conditions over a set period of time. To obtain a prescriptive easement, a person must use the affected portion of another person’s property for the statutory period of 5 years, which use must be (a) open and notorious; (b) continuous and uninterrupted; (c) hostile to the true owner; and (d) under a claim of right.
A recent case decided by the Court of Appeal addressed a query related to the requirement that the use be adverse for the statutory 5 year period, namely, what if the property owner from whom you are trying to secure the easement has not been in continuous possession of their property for the 5 year period of your adverse use? In King v. Wu (218 Cal.App.4th 1211 (2013)), the Kings’ predecessor had poured a concrete driveway on their property sometime on or around 1960, of which a strip of the driveway encroached on the neighboring property. The Kings’ predecessor, along with the Kings themselves, had continuously employed the driveway for ingress and egress to their garage and for parking during their respective ownerships. The Wus acquired the neighboring property in 1963 and in 2009 began to construct a metal guardrail over the encroaching strip of land. The Kings, in turn, filed suit to quiet title.
In response, the Wus raised an affirmative defense that they had not been in possession of their property for 5 continuous years during the Kings and the prior owner’s collective 49 year use of the encroaching strip of land because they had leased out the property during much of their ownership. Therefore, because they were not in possession of their property for 5 continuous years, the required statutory period could not have run against them. The Court of Appeal ultimately rejected the Wus affirmative defense stating that California law does not require the owners of the adversely used land to have been in continuous possession for 5 years. They clarified that if at any point during the hostile use an owner or a landlord has been in possession, including constructively at the expiration of a renewable lease, he or she could have taken action to interrupt such use. Because the Wus were in actual possession of their property for intervening years when there were no leases in place, as well as constructively at the end of each of the leases, they could not rely on the fact that they did not have actual possession for a continuous 5 year period while the Kings and/or their predecessor’s used the encroaching strip of land.
The King case did make it clear though that a prescriptive right cannot arise against an owner or landlord who has no possessory interest in the property at all during the period of hostile use. The court in King referenced Dieterich Internat. Truck Sales, Inc. v. J.S. & J. Services Inc. (3 Cal.App.4th 1601 (1992)), in which that court determined that an action obtained solely against a landlord’s tenants cannot affect the landlord’s rights. The Dieterich case held that a future interest, such as a landlord’s reversion, cannot be the subject of a prescriptive easement because the statutory period for acquiring the easement only runs against a possessory interest. Therefore, if the property had been leased for the entire time period in which the Kings were asserting their adverse use, then the King case could have turned out very differently as against the Wus themselves.
King v. Wu illustrates that as long as a property owner has constructive or actual possession of its property during the period of an adverse use, then that owner is charged to interrupt the hostile use during those interim times. It does not matter if the property owner did not possess its property for a continuous 5 year period. The person using the land can obtain a prescriptive easement against the owner, provided they satisfy all of the remaining conditions. This case could have implications for landlords who should be aware of possible encroachers on their property as they are responsible to interrupt the adverse use during their periods of possession and guard against another acquiring prescriptive easement rights.
The issues discussed in this update are not intended to be legal advice and no attorney-client relationship is established with the recipient. Readers should consult with legal counsel before relying on any of the information contained herein. Reuben, Junius & Rose, LLP is a full service real estate law firm. We specialize in land use, development and entitlement law. We also provide a wide range of transactional services, including leasing, acquisitions and sales, formation of limited liability companies and other entities, lending/workout assistance, subdivision and condominium work.
